Last week, we observed that major content companies have enjoyed a steady drumbeat of victories in Congress and the courts over the last two decades. The lobbying and litigation campaigns that produced these results have a counterpart in the executive branch. At the urging of major copyright holders, the Obama administration has been working to export restrictive American copyright laws abroad. The Anti-Counterfeiting Trade Agreement (ACTA) is just the most visible component of this ambitious and long-running project.

Ars Technica recently talked to Michael Geist, a legal scholar at the University of Ottawa, about this effort. He told us that rather than making their arguments at the World Intellectual Property Organization, where they would be subject to serious public scrutiny, the US and other supporters of more restrictive copyright law have increasingly focused on pushing their agenda in alternative venues, such as pending trade deals, where negotiations are secret and critics are excluded.

The growing opposition to ACTA in Europe suggests this strategy of secrecy may have backfired. But the US is not giving up. It has already begun work on its next secret agreement, ealled the Trans-Pacific Partnership. Geist told Ars that restoring balance to copyright law will require reformers to be as determined as their opponents have been. He said that donating to public interest groups that focus on international copyright issues is the best way to make sure that the public interest is well-represented.

Exporting copyright law

Countries have been negotiating international copyright treaties for more than a century, but the passage of two treaties in the 1990s represented a turning point in international copyright law.

WIPO's relatively open structure meant that major copyright holders didn't get everything they wanted in the 1996 treaty. For example, Geist said, the United States was unable to get the strong anti-circumvention language it preferred into the WIPO treaty.

"WIPO is a place that's more open than it used to be," Geist told Ars. "Because of the consensus-based approach, there is a necessity to engage in negotiating." Indeed, in recent years reformers have begun to make headway themselves. Treaties to liberalize copyright in ways that benefit libraries and the blind are now under consideration at WIPO.

So, Geist said, the US has increasingly engaged in forum-shopping, bypassing WIPO and pushing for stronger copyright protection in a wide variety of other venues. For example, the United States has negotiated a series of bilateral trade agreements with nations such as South Korea, Australia, and Chile. While they're branded as free-trade deals, they also require the other country to adopt the more punitive copyright regime favored by the United States.

The negotiations over the Anti-Counterfeiting Trade Agreement were part of this trend. In contrast to the relatively open WIPO process, ACTA was negotiated in secret by a relatively small number of mostly wealthy countries. The developing nations who would be the most likely to object weren't invited to participate. The plan was to present the finished treaty to the world on a "take it or leave it" basis.

Unfortunately, the plan didn't work as well as its backers had hoped. Early drafts of the treaty leaked, giving opponents time to organize against the most extreme provisions in the treaty. And the secretive and non-representative nature of the negotiation process created a bad taste in the mouths of many stakeholders. Concerns over ACTA's secretive drafting process may have been as important as any of the treaty's substantive provisions in generating European opposition. If Europe fails to ratify ACTA, it will dramatically weaken the treaty.

Try, try again

But the US isn't giving up. To the contrary, the US and its industry backers seem to have concluded the problem with ACTA was that they didn't try hard enough to lock down the negotiating process. So they're now plowing forward with the Trans-Pacific Partnership. This time, the US has cut the leak-prone Europeans out of the process, limiting negotiations to eight countries such as New Zealand and Peru that are much easier for the United States to intimidate. Presumably, the goal is to enshrine the US's preferred copyright policies in the TPP and then use the TPP as a template for future agreements.

Once the US gets a critical mass of countries to sign a deal, it can then use other carrots and sticks to pressure additional countries to sign on. Geist said one important tool is the so-called "Special 301" list, an annual watchlist of countries Washington considers to have insufficiently strict copyright laws. Not only will countries be pressured to sign onto ACTA, the US may also press them to implement even those provisions of ACTA that the agreement itself labels as optional.

Geist believes that the interests behind SOPA and ACTA are likely to view recent defeats as temporary setbacks. "They're not playing for next year," he said. "They're playing for 10 years and 20 years in the future."

He said that reformers can resist their agenda, but only if they play the same "long game" as their opponents. Ordinarily, the most important thing a citizen of a democracy can do to stop bad public policies is to call their legislators. But in this case, most of the action is occurring in international organizations where individual legislators have little influence.

To fight agreements like ACTA requires organizations with the sophistication and resources to navigate the complex world of international diplomacy. Geist pointed to Knowledge Ecology International, Public Knowledge, and the Electronic Frontier Foundation as examples of organizations with a track record of resisting the drive toward ever-stronger copyright protection.These organizations are "WIPO regulars" well positioned to stay in the trenches and ensure the public interest is well-represented regardless of the venue. Geist said that donating to these organizations is the most effective way for ordinary voters to help resist the worldwide trend toward ever-more-extreme copyright laws.

65 Reader Comments

This is just insane. Copyright was never intended to provide a means for anyone to draw a reliable income. It was intended to offer incentive to create more works for the benefit of adding to the supply of cultural works. It was created to benefit the public, not the businesses, unless you interpret the phrase "to promote the progress" to mean "generate profit". No other industry is granted such legislative privilege to ensure profit. The copyright act as it stands is unconstitutional. ACTA and its ilk seek to strengthen copyright's power and extend its reach to the entire globe. It should be overturned and rebuilt to serve it's real purpose to promote the proliferation of more art. It's supposed to encourage more art, not ensure profit.

Eternal vigilance is the price of liberty—power is ever stealing from the many to the few

I don't care how important the government, or the creators of Intellectual Property, think their creations are worth -- they are not worth secret negotiations between governments. How self important must one be to believe this?

The Government is destroying our internet. Hollywood is making our policy makers its puppets. Special interests rule the Obama administration. Joe Biden is the MPAA and RIAA's door knob. File sharing is not a crime. The real thing that is being infringed upon is a persons privacy online. Copyright laws are ancient and it isn't fair to make them applicable to the way of the future. The internet is a piece of that future and it is in danger. Innovation will be stunted as a result. We have a generation of yesteryears status quo lingering in high government positions that are so accustomed to the regular bread and butter of doing things. Its time for change.

As Hollywood concentrates more and more on protecting their IP, they pay less and less attention to the quality of that IP. I think that their campaign is partially intended to reinforce the notion that their output actually has value.

If I was somehow banned from ever seeing another Hollywood movie, or hearing another popular hit song, it wouldn't change my life in any way. And my life is filled with art and music, mostly made by me and my friends.

Pity the poor consumers, seduced into craving, and then denied their fix. As long as people are convinced that Hollywood's junk is actually worthwhile, and that they somehow have a right to consume it, corporate content owners will play them for fools.

If the rest of the world is truly actually concerned about U.S. influence and interference within international and foreign national circles, now is the time for the international community to step up and stop the copyright issues cold in their tracks. U.S. influence in many areas has been waning over the last 15 years but this is one area where its power is growing exponentially at present.

I am all for countries using influences for noble purposes but big media influence is doing nothing other than to strip due legal process, level ridiculously egregious fines and turn the world into a police state that operates at big media behest.

If the media companies were noble well intentioned and generally honest in their dealings I wpuld be more amenable but they have a long history of dishonesty and corruption and cannot in my opinion be trusted to do anything well intentioned except to strip money from the public at large over and over and over again by any means legal or illegal.

Eternal vigilance is the price of liberty—power is ever stealing from the many to the few

I don't care how important the government, or the creators of Intellectual Property, think their creations are worth -- they are not worth secret negotiations between governments. How self important must one be to believe this?

“When plunder becomes a way of life for a group of men living in society, they create for themselves, in the course of time, a legal system that authorizes it and a moral code that glorifies it.”

I become more and more convinced that constitutional amendment is the only way to stop this madness.

I wonder if a constitutional amendment can be made to be proposed at a constitutional convention initiated by a referendum at the state level .... wouldn't it be great if CA's broken referendum system did something useful?

I used to be up on all the copyright rules until the late 90's. It was complicated enough even then. Then, DMCA, then the 20 year extensions, now all this.

Here's my solution to this mess, based on my take on all this.

Instead of setting the year that it was copyrighted, publish the expiration date.

If anything is digital, then they have to embed a copyright expiration date into the exif/header/whatever. This date is fixed per work, and can't be altered, or even have a registry DB that the software can check over the internet to validate. Once that date is reached, the work is in the public domain. (I know, this would be hard to enforce, but it can be done.)

If anything is fixed in paper/etc, like a book, the copyright expiration date is fixed in the front.

The length of time should only be 10 to 20 years, and never change, except downward. (The current growth of length by an order of magnitude is a joke, and has altered the intended purpose dramatically. To be honest, as a US citizen, I think the abuses of this almost justify gutting all copyrights and just saying "no more copyright, you screwed it up, you got your dues and then some, it's all fair game now.")

This would prevent extensions for existing works. Would make international disputes for varying copyright lengths go away.

The whole move of prosecution of copyright violations to criminal court (from civil) needs to be reversed, except for commercial operations.

Oh, and if software wants to have a contract you 'click', then they don't get copyright protections. They then have contract disputes, not copyright violation. Either/or. Not both.

I think the real, strategic reason for this is that the US economy is becoming more and more IP-dependent over the next couple of decades. I think that this business with copyright laws specifically are just a preamble for the push to ensure intellectual property in general is internationally recognized and respected.

How else are we ever going to balance the trade defecit? Companies desperately want the ability to sell the same product in different markets at completely different prices.

For instance, drug companies want to be a will to sell very high-priced drugs to US markets, while simultaneously sell the same drug for lower prices optimize for developing countries. This leaves a bad taste in the mouth of US consumers when they find out that they've been paying many times more for the same drug. It also leaves developing countries questioning the legitimacy of the system when low-cost generics would be of great public-health benefit.

These strong-armed approaches are just setting the groundwork where we can compel the world's developing economies to all support the maximum market price for US IP.

The fact that this hurts the average consumer is incidental. I am guessing that the leaders in charge are looking at this as a protective scheme to help solidify our dominance in a 21st-century world.

I think the real, strategic reason for this is that the US economy is becoming more and more IP-dependent over the next couple of decades. I think that this business with copyright laws specifically are just a preamble for the push to ensure intellectual property in general is internationally recognized and respected.

How else are we ever going to balance the trade defecit? Companies desperately want the ability to sell the same product in different markets at completely different prices.

We could try actually innovating instead of being thugs that bully other countries around.

I think the real, strategic reason for this is that the US economy is becoming more and more IP-dependent over the next couple of decades. I think that this business with copyright laws specifically are just a preamble for the push to ensure intellectual property in general is internationally recognized and respected.

Um...It already is?.Why would they need to push for that?.Or did you really think otherwise?.

I think the real, strategic reason for this is that the US economy is becoming more and more IP-dependent over the next couple of decades. I think that this business with copyright laws specifically are just a preamble for the push to ensure intellectual property in general is internationally recognized and respected.

The child repeating the parents mistakes.

This seems all too similar to the position of the British empire before the onset of WW1.

It seems that part of the barrier to effective opposition is the language barrier. Not the English vs some foreign language, but the couching of these treaties and other such in the language of the lawyer and the legislator. How can people fight something they can't even read, let alone understand?

We need to PUSH a US Constitutional Amendment through requiring all laws, agreements, policies, codes, or anything else that bears the weight of being required as law, to be open, completely copyright and patent free to the people, and any such requirements be able to be called to vote and/or overturned by the people for any reason.

It seems that part of the barrier to effective opposition is the language barrier. Not the English vs some foreign language, but the couching of these treaties and other such in the language of the lawyer and the legislator. How can people fight something they can't even read, let alone understand?

They need to limit copyright not increase enforcement of it, why does things have to be protected over 50 years after the creater dies (probably longer now after the big corporatios had their way). I wonder how much is lost when older works are forgotten but still protected by copyright...

After the secrecy and bad publicity of ACTA who will sign one of these things? Wouldn't it be a political suicide to do it? Maybe I'm naive to think they would have to go public at some point...

Seems that just about everyone is going out of their way for more rent-seeking. http://en.wikipedia.org/wiki/Rent-seekingThe elites dont want to give up their luxury lifestyles while doing absolutely nothing of value.

As Hollywood concentrates more and more on protecting their IP, they pay less and less attention to the quality of that IP. I think that their campaign is partially intended to reinforce the notion that their output actually has value.

If I was somehow banned from ever seeing another Hollywood movie, or hearing another popular hit song, it wouldn't change my life in any way. And my life is filled with art and music, mostly made by me and my friends.

Pity the poor consumers, seduced into craving, and then denied their fix. As long as people are convinced that Hollywood's junk is actually worthwhile, and that they somehow have a right to consume it, corporate content owners will play them for fools.

There must be a concentrated World-Wide effort of Boycott Against Big Content !!!I will never allow my money to go to any of these Companies and I mean it.I AM DONE WITH THEM ! I will however be more than glad to purchase Art in its various forms by INDIE Non-RIAA/MPAA/Big Content Artists.Bye Bye Hollywood finally.For years I have cut back on any of my purchases and finally your bullshit has given me exactly the strength and determination to CENSOR You from ever going near my wallet.ACTA is a piece of toilet paper that has been used and abused.In the end you will be the one who feels the wrath of this World."The more you tighten your grip, Tarkin, the more star systems will slip through your fingers."Sure we have to fight a big battle here.Mr. Normal will not understand all of these issues and for the most part will be completely unaware of the issues at hand.However we who do have an understanding should all be joining together as Brothers to vow to Censor those who would Censor you by not giving any of them a dime out of your wallet.At this point anyone who supports these asshole Industries is a Collaborator.I Hate The MAFIAA !!! FRAK YOU

As Hollywood concentrates more and more on protecting their IP, they pay less and less attention to the quality of that IP. I think that their campaign is partially intended to reinforce the notion that their output actually has value.

If I was somehow banned from ever seeing another Hollywood movie, or hearing another popular hit song, it wouldn't change my life in any way. And my life is filled with art and music, mostly made by me and my friends.

Pity the poor consumers, seduced into craving, and then denied their fix. As long as people are convinced that Hollywood's junk is actually worthwhile, and that they somehow have a right to consume it, corporate content owners will play them for fools.

There must be a concentrated World-Wide effort of Boycott Against Big Content !!!I will never allow my money to go to any of these Companies and I mean it.I AM DONE WITH THEM ! I will however be more than glad to purchase Art in its various forms by INDIE Non-RIAA/MPAA/Big Content Artists.Bye Bye Hollywood finally.For years I have cut back on any of my purchases and finally your bullshit has given me exactly the strength and determination to CENSOR You from ever going near my wallet.ACTA is a piece of toilet paper that has been used and abused.In the end you will be the one who feels the wrath of this World."The more you tighten your grip, Tarkin, the more star systems will slip through your fingers."Sure we have to fight a big battle here.Mr. Normal will not understand all of these issues and for the most part will be completely unaware of the issues at hand.However we who do have an understanding should all be joining together as Brothers to vow to Censor those who would Censor you by not giving any of them a dime out of your wallet.At this point anyone who supports these asshole Industries is a Collaborator.I Hate The MAFIAA !!! FRAK YOU

Uh-Oh. I Beat you to the all-famous "...The more you tighten your grip..." quote.. hee hee. ;-) I totally agree with you, though. There's no standing up against "Big Content" if we all try to do it on our own.. Strength in numbers, and all that.

I think the real, strategic reason for this is that the US economy is becoming more and more IP-dependent over the next couple of decades. I think that this business with copyright laws specifically are just a preamble for the push to ensure intellectual property in general is internationally recognized and respected.

Um...It already is?.Why would they need to push for that?.Or did you really think otherwise?.

Um... What world are you living in? Movies available in China and India before they're released in Europe (or sometimes in the USA?). Fake designer clothing, Nike shoes, and name-brand toys and drugs seized at Customs. In 1966, I could buy clearly copied Charles Shulz "Peanuts" books in Taiwan. In the '80s, a friend went to Korea and discovered his book (Musical Applications of Microprocessors) being printed and sold internationally by a Korean company - unbeknownst to him or his publisher.

The problem is:

a) Most piracy of American goods is internationally sourced. A large percentage of people internationally can't afford the prices American companies want. And Chinese manufacturers will copy anything from cigarette labels to storefronts to try to make money.

b) Protection (or even ownership) of Intellectual Property is completely antithetical to the fundamental principles of theoretically communist countries like Russia and China. If you can't own *physical* property, how does owning *intangible* property make sense? They're changing, but slowly.

c) "Casual" piracy - downloading copyrighted material, or sharing a song with a few friends - is a small part of the overall problem, and arguably the least damaging in a monetary sense.

So the government has a reasonable position in attempting to get widespread adoption/uniformity of intellectual property protections. What's skewed is Big Content's insistence that the most damage is done to their rights, and the government's criminalizing trivial usage of pirated material. Ever Xeroxed a magazine article and passed it to coworkers? Nobody cares. But do the exact same thing to a song, and they want to send you to jail and charge you up to $150,000/copy! As a commenter in another Ars article observed, "You get more jail time for downloading a Michael Jackson song than for killing Michael Jackson."

Everyone should look at this presentation, and particularly the charts there. This is an actual study of internet downloading in 6 countries, focusing on the US and Germany, reported at a publishers conference this month:

So the government has a reasonable position in attempting to get widespread adoption/uniformity of intellectual property protections.

The position may be reasonable, but the methods used are not acceptable, undermining the ability of these countries to self-govern. Forcing copyright and patent laws on other countries through trade threats is completely unacceptable. The only bargaining tool that is acceptable is reciprocity, and said reciprocity cannot be forced to be applied retroactively.

Timothy B. Lee / Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times.